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2014 DIGILAW 143 (TRI)

Shri Babu Singh Malsum v. Mahila Kanya Malsum and Shri Nirmal Chandra Malsum(Minor)

2014-04-09

S.C.DAS

body2014
JUDGMENT S.C. Das, J.:- By this petition filed under Section 19(4) of the Family Courts Act, 1984 the petitioner challenged order dated 17.04.2009, passed by learned Judge, Family Court, Udaipur, South Tripura in Case No. Criminal Misc.(FC) 27 of 2008. 2. Heard learned senior counsel, Mr. D. Chakraborty, assisted by learned counsel, Ms. S. Gupta for the petitioner and learned counsel, Mr. D. Bhattacharji for the respondents. 3. Facts, in short, are as follows:- 3.1. The respondents, as petitioners approached the Family Court, Udaipur, South Tripura, presenting an application under Section 125 of CrPC claiming maintenance for them @ ` 2,500/- per month [` 1,500/- for petitioner No. 1(wife) and ` 1,000/- for petitioner No. 2(son)] and prayed for a direction to the opposite party to make payment of the said maintenance allowance to the petitioners, i.e. the respondents herein. It has been contended by the respondents in their petition before the Family Court that marriage between the petitioner herein and the respondent No. 1 was solemnized on 12th of Agrahayan, 2000 BS as per Tribal customary rites and ceremonies and thereafter they lived and cohabited as husband and wife and the respondent No. 2 was born out of the wedlock of the petitioner and respondent No. 1. The petitioner demanded ` 5,000/- to respondent No. 1 to bring the amount from her parental home but the parents of respondent No. 1 could not fulfill the demand and, as a result she was subjected to cruelty both mentally and physically. Respondent No. 1 also alleged that there were several village meetings in the house of her father to mitigate the dispute and on all occasions the petitioner giving assurance that he will not torture on respondent No. 1 further, took her back to the matrimonial home but again treated her badly as before. She has also alleged that on 30.03.2006 she was mercilessly beaten by the petitioner and thereafter she was put out of the matrimonial home with her infant child. She alleged that the petitioner earned ` 6,000/- per month and she has no source of income to maintain herself and her child and prayed for maintenance @ ` 1,500/- for herself and ` 1,000/- for her son, totaling ` 2,500/- per month. 3.2. She alleged that the petitioner earned ` 6,000/- per month and she has no source of income to maintain herself and her child and prayed for maintenance @ ` 1,500/- for herself and ` 1,000/- for her son, totaling ` 2,500/- per month. 3.2. The opposite party, i.e. the petitioner herein contested the case by filing written objection, inter alia stating that no marriage was solemnized between the petitioner and respondent No. 1 on the alleged date and time and there was no question of living together as husband and wife in the house of the petitioner. Respondent No. 2 was not born due to any cohabitation between the petitioner and respondent No. 1 and that the claim was totally false. It is also contended that there was no relation at all in any manner between the petitioner and the respondent. It is further contended by the petitioner that he joined the extremist group in the year 1999 and surrendered in the year 2006 and that he has no fixed income as alleged. Since there was no matrimonial relation between him and respondent No. 1 there was no question of payment of maintenance. 4. In course of trial before the learned Judge, Family Court the respondent No. 1 examined herself as PW1 and also examined three more witnesses in support of her claim. The petitioner also examined himself as DW1 and examined eleven more witnesses in support of his case. The learned Judge, Family court considering the pleadings and the evidence directed the petitioner herein to pay maintenance @ ` 500/- per month to the respondent Nos. 1 and 2 each, w.e.f. the date of filing of the application, i.e. 02.06.2008. Felt aggrieved the present revisional application is filed. 5. Learned senior counsel, Mr. Chakraborty has submitted that the respondent No. 1 simply stated that her marriage was solemnized on 12th of Agrahayan, 2000 BS as per Tribal customary rites and ceremonies. Her witnesses supported her contention that they were present in the marriage. Nothing stated by the respondent No. 1 or her witnesses as to what were the ceremonies performed at the time of solemnization of alleged marriage. Since the opposite party-petitioner denied the factum of marriage, it was necessary for the respondents to prove the solemnization of marriage by adducing evidence as to what ceremonies they have undergone and who have performed the ceremonies. Since the opposite party-petitioner denied the factum of marriage, it was necessary for the respondents to prove the solemnization of marriage by adducing evidence as to what ceremonies they have undergone and who have performed the ceremonies. In the absence of any such evidence it was quite improper for the learned Judge, Family Court to arrive at a conclusion that the respondent No. 1 is the married wife of the petitioner and respondent No. 2 is their son. It is also submitted by Mr. Chakraborty, learned senior counsel, that all the DWs adduced negative evidence which is observed in the judgment of the trial Court and on that ground discarded the evidence of DWS, was not at all fair. There was nothing positive to be stated by the DWs and in the circumstances, trial Court would consider their evidence and arrive at a finding against the respondents. 6. Learned counsel, Mr. Bhattacharji appearing for the respondents has submitted that the respondents are helpless wife and minor child of the petitioner, who are kept unfed by the petitioner and to escape the legal and moral liability the petitioner taken a false plea that there was no marriage between him and the respondent No. 1. The evidence adduced by the petitioner is sufficient to arrive at a conclusion for the purpose of granting maintenance and the trial Court rightly arrived at a finding that the respondents proved their case and quite rightly directed the petitioner to pay the maintenance. 7. I have meticulously gone through the impugned judgment passed by the learned trial Judge as well as the pleadings and evidence on record. The learned Judge, Family Court recorded the substance of the evidence of both the parties but there is no cross-examination of the witnesses by the other side. No doubt, lawyer’s representation is not permissible in the Family Court but if the parties cannot conduct their case effectively to arrive at a fair decision, the Family Court may take the help of legal practitioner. On going through the deposition of the witnesses I find that there was nothing recorded that the witnesses were asked to be cross-examined by the other side. What is stated by the witnesses in their examination-in-chief has been noted down summarily. The Court has passed the judgment based on such recorded statements without any cross-examination and issue has not been insisted by the parties. 8. What is stated by the witnesses in their examination-in-chief has been noted down summarily. The Court has passed the judgment based on such recorded statements without any cross-examination and issue has not been insisted by the parties. 8. Respondent No. 1 stated that her marriage was solemnized on 12th of Agrahayan, 2000 BS as per Tribal customary rites and ceremonies and she lived and cohabited with the petitioner and a son was born in the year 2001. She has also stated that her husband joined the extremist group in the year 2005 and surrendered to the police in the year 2006. She has also stated that many people of the locality were present in the marriage ceremony. After birth of their son they took their joint photograph. She has also stated that her husband was getting ` 2,000/- from the Government as allowance, after surrender and she prayed for maintenance @ ` 3,000/- per month for herself and her son. She was supported by her father PW3 and two village leaders, i.e. PW2 and PW4 about the marriage. 9. The petitioner (opposite party) in his deposition simply stated that he never married respondent No. 1(petitioner) and obviously no child was born because of living of the respondent No. 1 with him as alleged. He also stated that all the allegations made by the respondent No. 1 were false. All other DWs stated that they do not know whether there was any marriage between the petitioner and the respondent No. 1. 10. Section 125 of CrPC prescribes provision to grant maintenance to a wife, children or parents who cannot maintain themselves. According to law, wife means a legal married wife. Respondent No. 1 stated that her marriage with opposite party was solemnized on 16th of Agrahayan, 2000 BS as per Tribal customary rites and ceremonies. Her statement has not been shaken in any manner which is supported by the evidence of other witnesses. There was no cross-examination of those witnesses. The petitioner, i.e. the opposite party husband flatly denied the relation and his witnesses only stated that they do not know about any such marriage. Her statement has not been shaken in any manner which is supported by the evidence of other witnesses. There was no cross-examination of those witnesses. The petitioner, i.e. the opposite party husband flatly denied the relation and his witnesses only stated that they do not know about any such marriage. So, under such circumstances of the case, the learned Judge, Family Court rightly arrived at a conclusion that the opposite party-wife has proved her case that a marriage was solemnized and they lived and cohabited as husband and wife and a child was also born to them. 11. In a case under Section 125 of CrPC, proof of marriage is not required to the extent as it is required in a case of bigamy or in other matrimonial suits. If it is prima facie found that there was a marriage and the parties lived together as husband and wife to the knowledge of the society where they lived, the Court while adjudicating upon a case of maintenance should not look for further details evidence of solemnization of marriage as is required in a case of bigamy or any other matrimonial suits. I cannot agree with the submission of learned senior counsel, Mr. Chakraborty that since neither the respondent No. 1 who was the petitioner in the maintenance case nor her witnesses stated about the ceremonies performed in the alleged marriage so their case should be thrown overboard. In my considered opinion, the trial Court rightly arrived at a conclusion in the given facts and circumstances and the evidence on record that the respondent No. 1 proved the case for the purpose of granting maintenance in her favour. 12. The revisional application, therefore, is found to be devoid of merit and, hence it stands dismissed. 13. Send back the L.C. records along with a copy of the judgment.